The CJEU has confirmed that copyright protection for football fixture lists as databases is not possible where skill and labour has been expended only in the creation of the lists, rather than in the selection or arrangement of data.  The Court had acknowledged in the Fixtures Marketing case in 2004 that football fixture lists were databases, but then ruled out the possibility of protection under the separate database right. This latest effort at using copyright to protect the work involved in compiling fixture lists has probably failed and will inevitably come as disappointing news for sports licensing bodies which are likely now to lose considerable licensing revenues.  

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The CJEU has confirmed that copyright protection for football fixture lists as databases is not possible where skill and labour has been expended only in the creation of the lists, rather than in the selection or arrangement of data. The Court had acknowledged in the Fixtures Marketing case in 2004 that football fixture lists were databases, but then ruled out the possibility of protection under the separate database right. This latest effort at using copyright to protect the work involved in compiling fixture lists has probably failed and will inevitably come as disappointing news for sports licensing bodies which are likely now to lose considerable licensing revenues.

This case started in the English courts, which had given some support to the idea that fixture lists may be protectable by copyright. In May 2010 the High Court found that English and Scottish football fixture lists were not protectable under database right law, following the Fixtures Marketing case, C-46/02, as there had not been substantial investment in obtaining, verifying or presenting content (as contrasted with creating data). However, it decided that such lists could be protected by copyright under Article 3 of the Database Directive 96/9/EC which applies to databases as copyright works in themselves, if such databases, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation".

The fixture lists were compiled according to various rules, which required substantial and complex work, some automated and some manual, and considerable judgement and skill. The High Court ordered that they did qualify as copyright works and this finding was consistent with older English law on the protection of football fixture lists as literary works (Football League Ltd -v- Littlewood Pools, 1959).

On appeal, the Court of Appeal considered that the copyright position was unclear, so referred the following questions to the CJEU:

1. In Article 3(1) of Directive 96/9... what is meant by "databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" and in particular:

  • Should the intellectual effort and skill of creating data be excluded?
  • Does "selection or arrangement" include adding important significance to a pre-existing item of data (as in fixing the date of a football match)?
  • Does "author's own intellectual creation" require more than significant labour and skill from the author, and if so what?

On these issues the Court of Appeal saw force in the arguments of both sides. The claimants argued that the data consisted of matches to be played, which had to be (skillfully) arranged. The defendants argued that Article 3 referred to selecting or arranging pre-existing data and that the intellectual input here was in creating data.

2. Does the Directive preclude national rights in the nature of copyright in databases other than those provided for by the Directive?

On this question the Court of Appeal doubted that the Database Directive intended to preserve national laws as to subsistence of copyright in databases, as this would have defeated the point of harmonisation. However, there was sufficient uncertainty to justify a referral.

CJEU Judgment

The Court, partly following the Advocate General's reasoning, found against the claimants. It decided as follows:

  • "copyright and database right are two independent rights whose object and conditions of applications differ;
  • the copyright protection provided by the Database Directive concerns structure and not contents, so the protection does not extend to the data itself; "selection" and "arrangement" relate to structure and not to data creation;
  • the purpose of Directive is consistent with this, as the recitals confirm that the purpose is to stimulate creation of data storage and processing systems to contribute to the development of an information generating market; the purpose is not to protect creation of materials capable of being collected in a database;
  • therefore the intellectual effort and skill needed to create the data is not relevant to copyright under the Directive, unless it expresses originality in the selection or arrangement of data;
  • it is irrelevant whether or not selection or arrangement of that data includes the addition of important significance to that data (the Advocate General had mooted this as a possible way of qualifying for database protection);
  • "intellectual creation" under the Directive refers only to originality (reference was made to the CJEU case of Infopaq, C-5/08);
  • the originality criterion is satisfied where through selection or arrangement of data, the author expresses his creative ability in an original manner by making free choices and "stamps his personal touch"; it is not satisfied where setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom;
  • the national court must assess – but unless the procedures for creating lists, as described by the English court, are supplemented by elements reflecting originality in selection or arrangement of data contained in the lists, there cannot be copyright protection;
  • the Directive has completely harmonised the level of protection accorded to databases, and subject to limited transitional provisions, it precludes national legislation which offers a different measure of copyright protection.

Comment

The English High Court, having been particularly influenced by the amount of time and skill involved in creating complex fixture lists, had tried to find a way to circumvent the CJEU's previous decisions concerning database rights which were unhelpful to rights owners. However, the copyright argument has largely failed and it is difficult to see how the case can be found in the claimants' favour once it returns to the Court of Appeal.

However, as the Directive makes clear, copyright will still subsist in individual works within databases, for example, photographs. In this case the Advocate General had also commented that it may be possible for a football fixture list to be protected by copyright if sufficiently original features are introduced, for example, a particular manner of representing the matches through colour or other graphic elements, which would protect the means of representation and not the data itself. This is something which database creators should consider, as well as working harder to incorporate truly creative elements into their selection and arrangement of data.

The Court of Appeal's final judgment is awaited, but it seems likely that in the UK the ambit of copyright protection for compilations and database type works will have narrowed: hard work and intellectual effort in creating the data appear not to be enough obtain protection. Further, in analysing the protection accorded to any database, there remains the difficult and somewhat artificial line to draw between creation of data, and the selection and arrangement of data, which this judgment does little to clarify.

Football Dataco Ltd & others v YAHOO! UK Ltd & others, CJEU, Case C-604/10, 1 March 2012

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The original publication date for this article was 02/03/2012.